National Treasury briefings: Tax treaties & double-taxation agreements with Cameroon, Qatar, Hong Kong, Lesotho, Cyprus; Exchange Information agreement with Grenada; BRICS New Development Bank & Contingent Reserve Arrangement

Meeting report

Request to ratify Tax Treaty: with Cameroon, Lesotho, Hong Kong, Qatar and Cyprus: National Treasury briefing

Mr Lutando Mvovo, Director: Tax Policy, National Treasury, explained the purpose of tax treaties. Countries entered into them in an attempt to prevent double taxation of the same income, create fiscal stability and prevent tax avoidance and evasion.

He noted the interaction between tax treaties and domestic law. Section 231(1) of the Constitution states that signing and negotiation of all international agreements is the responsibility of the National Executive. Section 231(2) noted that any treaties and agreements would bind the Republic once approved by Parliament. Section 231 (4) noted that the international agreement would effectively become law in the Republic when it was enacted into law by national legislation.

Specifically in relation to the Income Tax Act, it was explained that section 108 (2) of that Act said that any tax agreements were to be approved by Parliament, published in the Government Gazette and would then have effect as if enacted in the Income Tax Act.

He outlined the main considerations for a Tax Treaty. In respect of new treaties, the country identification was important, and considerations were:
- flow of investment, inbound and outbound
- the fact that main corporate players would be making cross border investments in either country
- in some cases, such treaties served to create political relations
- trade flows were a mere indication of economic activity)
- treaties provided a gateway to Africa’s strategy
- the potential economic and political advantages needed to be weighted up against the possible risk of compromising the domestic tax base.

Certain benchmarks were applied to consider tax treaties. In the main, these related to the tax profile of the other country, which would comprise a consideration of:
- its tax system (basis of tax, domestic tax rates, domestic and treaty withholding tax rates
- special tax vehicles and instruments (effective tax rates, tax on interest, dividends, royalties, capital gains and other considerations)
- the treaty network and variations, being common trends and common treaty partnership
- interrelationship between the tax systems of two countries and whether this was likely to distort economic activity
- the potential for tax avoidance, such as through transfer pricing
- the risk of "treaty shopping".

South Africa – Lesotho Double Taxation Agreement (DTA)
Mr Mvovo moved on to note the particular reasons for each of the Double Taxation Agreements (DTAs) that were now being presented. In the case of Lesotho, this treaty was to renegotiate the old tax treaty. The first tax treaty between South Africa and Lesotho came into force in 1997, but during that time South Africa was still using a source-based system of taxation and did not have a capital gains tax system, so that the current tax treaty between South Africa and Lesotho did not cover certain aspects.

There was growing presence of South African companies in the construction, retail, transport, tourism, communication and financial sectors in Lesotho, and Lesotho, which was a member of the SADC, was also important from a regional perspective. As mentioned, there had been changes in the South African domestic law of taxation, and there were also some changes in international trends.

He noted that the negotiations were concluded in 2013; and the renegotiated tax treaty was signed on 18 September 2014.

South Africa – Cameroon DTA
This was a new tax treaty, and South Africa’s first tax treaty with a country in the Central African region. The aim was to enhance economic relations between South Africa and Cameroon . As with Lesotho, there was growing presence of the South African companies in Cameroon, especially in the mining, aviation, telecommunications and financial sectors. The treaty would expand South Africa’s tax treaty network in Africa and promote South Africa as a gateway to Africa.

In terms of bilateral relationship between the two countries, this was the third bilateral agreements with Cameroon. The other two bilateral agreements were the General Co-operation Agreement (which opened the way for co-operation in all government sectors), and a Bilateral Trade Agreement. There was also a Memorandum of Understanding on Economic Co-operation.

South Africa – Qatar DTA
This was also a new tax treaty. The SA and Qatar tax treaty was initiated by South Africa to strengthen economic relations between South Africa and Qatar, and to expand South Africa’s tax treaty network in the Middle East. The growing South African community in Qatar was evidenced by the establishment of the South Africa Social Committee (SASCOM) which assisted newcomers to Qatar.

Qatar was important to South Africa as it had oil reserves of 15.21 billion barrels and natural gas reserves measured at approximately 25.4 trillion cubic metres. There was presence of South African companies in the aviation, construction and oil industries. The negotiations were concluded in 2013 and the agreement was signed on 6 March 2015.

South Africa - Hong Kong DTA

This was a new tax treaty, which aimed to promote economic relations between South Africa and Hong Kong by providing certainty for cross –border investments and trade. The treaty was initiated by Hong Kong, to expand its tax treaty network. Hong Kong was regarded as the world’s gateway to Mainland China and other parts of Asia. Hong Kong’s Stock Exchange was the sixth largest stock exchange in the world and in Asia, it was the third largest in terms of market capitalisation, after the Tokyo and Shanghai Stock Exchanges.

Major South African companies with a presence in Hong Kong included companies in aviation, shipping, construction, oil, consumer products, engineering, banking and travel. A large number of Hong Kong companies had a presence or offices in South Africa. For these reasons, it was necessary that a tax treaty between the two countries be negotiated. The negotiations were concluded in 2013 and the agreement was signed on 16 October 2014.

South Africa – Cyprus Protocol to the DTA
Mr Mvovo noted that there was already a tax treaty in existence, but some changes to it were necessary as a result of the conversion of Secondary Tax on Companies (STC) to a dividends tax at shareholder level. The implementation of the proposed STC conversion was subject to renegotiation of tax treaties that had a zero rate withholding tax on dividends. The dividends tax came into operation on 1 April 2012. The renegotiation also addressed certain aspects that were not present in the current treaty, such as updating the article on exchange of information.

The South Africa-Cyprus tax treaty was signed on 26th November 1997, and at that time South Africa was still operating on a source system of taxation. Negotiations were concluded in 2012 and the Protocol amending the tax treaty was signed on 1 April 2015. 

Discussion

Ms E Van Lingen (DA, Eastern Cape) asked why it took so long for these international trade agreements to filter down to the South African Parliament, and wondered whether this was because there were so many stages through which they must pass before getting to Parliament. Most of the agreements were completed in 2013 but were only being discussed in Parliament in 2015.

The Chairperson said this was an important question. When the Committee started in June 2014, one of the induction sessions was run by National Treasury and South African Revenue Services (SARS). The sessions dealt with this issue and explained the process. Ms Van Lingen was not a Member of the Committee at that time and so the Chairperson asked if this could be explained again.

Mr Mvovo explained that there was a difference between conclusion and signing. Conclusion, in this case meant that the two parties that were in negotiation reached an agreement in principle. Once the negotiations were concluded, the National Treasury and SARS would come to the Committee for a preliminary hearing, so that the Committee was informed of the fact of the negotiations leading to an agreement, but before it was signed. After the preliminary presentation, the Ministers from both countries would arrange a date for the signing of the agreement. For the most part, this was where the delays occurred for the countries had to align their schedules to set a date, based on who could sign the agreement on behalf of each country.

Mr S Mohai (ANC, Free State) asked if Hong Kong was not part of China, and whether South Africa had treaties with different areas in China.

Mr Mvovo said in most instances Hong Kong was independent from China, it had its own CEO (which was the equivalent of a Prime Minister) and it had its own ministers for departments. However, it was still necessary for Hong Kong to get authorisation from China before it started to enter into negotiations, although the agreements were in fact negotiated independently, without any input from China.

Double Taxation Conventions and Agreements: Request for Formal Ratification
Ms Oshna Maharaj, Manager: International Development and Treaties, SARS, took the Committee through the various articles of the agreements, protocols and conventions, to explain them to the Committee. The purpose of the agreements was to remove barriers to cross-border trade and investment.

Hong Kong
The agreement between the government of the Republic of South Africa and the government of the Hong Kong Special Administrative Region of the People’s Republic of China was for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. The agreement closely followed the Organisation for Economic Cooperation and Development (OECD) and United Nations (UN) Model Conventions, which formed the foundation for Double Taxation Agreements (DTAs) worldwide.

However, in this case, a number of articles were different from the normal South African approach. Ms Maharaj explained Articles 4, 5, 10, 11, 12, 17, 19, 24 and 26 which were articles of interest in the South Africa – Hong Kong Double Tax Agreement (see attached presentation for full details).

Qatar
There was another agreement between the government of the Republic of South Africa and the government of the States of Qatar, for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. This agreement also closely follows the OECD and UN Model Conventions, which formed the foundation for the vast majority of Double Taxation Agreements worldwide. A number of articles were different from the normal SA approach. Ms Maharaj explained Articles 5, 8, 10, 11, 12, 15, 17, 19 and 24 which were articles of interest in the South Africa – Qatar Double Tax Agreement. The protocol provided that the exemptions provided for in paragraph 3 of Article 10 and paragraph 3(d) of Article 11 apply to the Qatar Investment Authority, Qatar Holding and their subsidiaries, as long as these were wholly owned, directly or indirectly, by the State of Qatar.

Lesotho
The purpose of the agreement between the government of the Republic of South Africa and the government of the Kingdom of Lesotho was for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. The agreement closely followed the OECD and UN Model Conventions. A number of articles were different from the normal SA approach. Ms Maharaj explained Articles 4, 5, 7, 8, 10, 11, 12, 13, 17, 18, 21, 23, 26 and 27 which were articles of interest in the South Africa – Lesotho Double Tax Agreement.

Cameroon
The purpose of the convention between the government of the Republic of South Africa and the government of the Republic of Cameroon was for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. The convention closely follows the OECD and UN Model Conventions. Again, there were a number of articles were different from the normal South African approach. Ms Maharaj explained Articles 4, 5, 7, 10, 11, 12, 14, 18, 19, 22 and 27 which were articles of interest in the South Africa – Cameroon Double Tax Convention.

Protocol amending the Double Taxation Conventions / Agreements: Request for Formal Ratification

The purpose of these agreements was to remove barriers to cross-border trade and investment. The protocol amending the Agreement between the government of the Republic of South Africa and the government of the Republic of Cyprus was for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, with the Protocol signed at Nicosia on 26 November 1997. The amendments to the Agreement became necessary in view of the proposed phasing out of the secondary tax on companies and its replacement with a dividends tax. Ms Maharaj explained the articles of interest in the South Africa – Cyprus Protocol amending the Double Tax Agreement.

Tax Information Exchange Agreements: Request for Formal Ratification

The purpose of these agreements was to allow for effective exchange of Information between the Tax Authorities in both countries. The agreement between the Government of the Republic of South Africa and the Government of Grenada was for the exchange of information relating to tax matters. The agreement closely followed the OECD Model Tax Information Exchange Agreement (TIEA), which formed the foundation for the vast majority of Tax Information Exchange Agreements (TIEAs) worldwide. The TIEA ensured that bank secrecy or the absence of a domestic tax interest could no longer be used to deny a request for exchange of information. Ms Maharaj explained the articles of interest in the South Africa – Grenada Tax Information Exchange Agreement.

Adoption of Agreements, Protocol and Convention
Since there were no questions from the Members, the Chairperson asked the Committee to adopt the reports. He tabled the agreements, one by one, requesting the Members to formally adopt them and recommend ratification to the House, after each document was tabled.

It was noted formally that the Select Committee on Finance, having considered the request for approval by Parliament of the protocol amending the agreement between the Government of the Republic of South Africa and the Government of the Republic of Cyprus for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, tabled in terms of Section 231(2) of the Constitution, 1996 approved this protocol.

In respect of the Qatar DTA, the Select Committee similarly approved the agreement.

A similar approach, report and adoption was carried out in respect of the Lesotho agreement.

The same was done for the DTA agreement with the Hong Kong Special Administrative Region of the People’s Republic of China.

Similar process and wording was also adopted for the approval of the DTA convention between South Africa and Cameroon.

Finally, the agreement for the exchange of information on tax matters with the Government of Granada was also adopted.
 

BRICS New Development Bank and Contingent Reserve Arrangement: National Treasury briefing

Mr Lungisa Fuzile, Director General, National Treasury, gave a presentation on the two initiatives that the BRICS countries had pursued, that were now at a mature stage of development. These were the New Development Bank and the contingent reserve arrangement.

He explained the background to the matters. On 27 March 2013, BRICS leaders reviewed progress made by the respective Finance Ministers in conducting a feasibility study on the setting up of the New Development Bank (NDB) and Contingent Reserve Arrangement (CRA). The leaders announced that they were satisfied that the establishment of a New Development Bank was feasible and viable and that they had accordingly agreed to establish it.

On 15 July 2014, at the Sixth BRICS Summit held in Fortaleza in Brazil, the BRICS Finance Ministers therefore signed the Inter-governmental Agreement and Articles of Agreement establishing the New Development Bank, as well as the treaty establishing the Contingent Reserve Arrangement.

The leaders’ declaration was that the NDB would have an initial authorised capital of US$ 100 billion. The initial subscribed capital would be of US$ 50 billion, equally shared among founding members. The first Chair of the Board of Governors would be from Russia. The first chair of the Board of Directors would be from Brazil. The first President of the Bank would be from India. The headquarters of the Bank would be located in Shanghai. The New Development Bank Africa Regional Centre would be established in South Africa, concurrently with the headquarters.

Motive
Mr Fuzile explained that the key motive for establishing the New Development Bank was the recognition of financing constraints that the BRICS member countries and other emerging market and developing countries (EMDCs) faced in addressing their infrastructure challenges. The Bank would:
- mobilise alternative sources of financing
- strengthen the cooperation among BRICS countries
- complement existing efforts by other development partners and International Financial Institutions (IFIs).

Purpose and instruments
The purpose of the NDB was to mobilise resources for infrastructure and sustainable development projects - public or private - in BRICS countries as well as other emerging economies and developing countries, complementing the existing efforts of multilateral and regional financial institutions for global growth and development. The NDB would operate according to sound banking principles, providing support for infrastructure and sustainable development projects. In addition, the NDB would provide technical assistance for the preparation and implementation of projects to be supported by the Bank. NDB would be providing support, in the form of loans, guarantees, equity participation and any other financial instrument, to public or private projects in member countries. The Board of Governors may approve operations in non-member emerging markets and developing countries.

Mr Fuzile went through the salient features of the agreement, which dealt with founding documents, membership, authorised capital, subscribed capital, review of capital, shareholding, governance, voting and decision making (see attached presentation for full details)

Regional centre
He noted that a Special Fund would be created within the Bank at the earliest occasion, with the participation of all founding members, for the purpose of helping project preparation and implementation. China was going to be the largest contributor. The Bank would have its principal office in Shanghai. The Articles of Agreement called for the establishment of the Bank’s Africa Regional Centre (ARC), in Johannesburg and this office was to be launched concurrently with the bank’s headquarters. The ARC would provide the primary operational interface between the NDB and the African Continent, striving to maximise the efficiency, effectiveness and impact of the Bank’s operations in Africa. Additionally, it would be responsible for creating and maintaining the NDB’s relationship with African states and regional bodies. Moreover, the ARC would host project preparation capacity, to bring projects that the Bank was interested in funding to a “bankable” stage.

Contingent Reserve Arrangement
Mr Fuzile noted that the BRICS Contingent Reserve Arrangement (CRA) was being established for the purpose of responding to short-term Balance of Payments (BoP) pressures. Countries experienced BoP pressures when they had insufficient foreign reserves (liquidity) to meet current claims. This most commonly resulted in depreciation of the domestic currency (which may then result in inflation) and the depletion of the countries’ foreign reserves. The International Monetary Fund (IMF) was widely understood to provide support for nation states in the event of balance of payment shocks. However, the increased frequency of these shocks had resulted in the development of complementary networks of country insurance and lending instruments.

These country to country networks were more appealing to most countries than requesting the IMF’s assistance, because there was less conditionality, more efficiency, and sustained capital market access. The CRA would serve as a precautionary measure to help the BRICS countries forestall short-term liquidity pressures, provide mutual support and further strengthen global financial safety net.

The CRA was a virtual pool of foreign reserves, similar to such regional financial arrangements as the Chiang Mai Initiative for Multilateralisation established by the Asian countries. BRICS countries were to ring-fence a portion of their country’s reserves for the purposes of the CRA. However, they would only be required to transfer these reserves to another BRICS country after the receipt and approval of a specific request. At the time of such request, each of the providing BRICS countries would engage in short-term swap transactions with the country requesting support. These swaps should have no impact on the foreign exchange reserves of the providing countries, because the swaps would involve exchanging US dollars for the local currency of the requesting country. Thus, the primary effect would be a temporary change in the composition, but not necessarily the level, of reserves. Furthermore, the requesting country would pay a fee for utilisation of the CRA, which would be Libor plus a margin, and thus the returns earned on the reserves should not be compromised in any way.

The Director General explained the contingent reserve arrangement mechanism and contingent reserve arrangement salient features of the agreement (see attached documents for full details).

Financial implications
Mr Fuzile noted that the documents establishing the New Development Bank were finalised in Fortaleza, on 15 July 2014. Currently there had been no budgetary provision for the NDB in the 2014 Medium Term Expenditure Framework (MTEF). Several options were being explored for funding; including a budget request for the upcoming 2015 MTEF.

The Bank's founding documents prescribed that the payment of the US$2 billion should be made in seven instalments. The first payment would be due six months after the depository received the last instrument of ratification. Current indications were that this would be within a year.

The CRA would not require South Africa to transfer any resources before the receipt and approval of a request. Once a request was received, the SA Reserve Bank would exchange a sum of its dollar reserves in exchange for an equivalent sum of the requesting party’s domestic currency. A Memorandum of Understanding (MOU) was being negotiated between the Reserve Bank and National Treasury.

Discussion

Mr F Essack (DA, Mpumalanga) asked how the Director General saw the IMF’s reaction to the New Development Bank. The NDB would obviously have a bearing on how the IMF transacted with the BRICS countries, and China’s influence would obviously be the major contributor on how the IMF received the Bank.

Mr Fuzile said that the initiative that most closely approximated to the IMF was the CRA rather than the NDB. In the initial stages there were questions raised by the IMF about the Bank and what it was trying to do, and the suggestion that it may be competing with the IMF. The reality was, however, that some of the BRICS countries were getting too big for the IMF and had no interest in undermining the IMF. On the other hand, there was a certain degree of frustration amongst these countries because the progress (or lack thereof) of the IMF did undermine the governance of the IMF itself.

He added that although China and Brazil were, respectively, the second and sixth largest economies in the world, their shareholding in the IMF did not represent the reality. This was a public debate, for in the United States both Congress and the government were debating the implementation of the 2010 Quota Review. The quotas of these countries should have increased proportionately to the sizes of their GDP. The formation of the Asia Infrastructure Investment Bank was saying that if the IMF did not democratise fully, the countries would create institutions that were more democratic, and where their status in the world would be affirmed. Mr Fuzile believed that if these initiatives were well managed, they would represent something very positive.

Mr Mohai said that financing for development was a key issue and there had been a lot of discussions on the matter. Mr Fuzile had, quite correctly, said that part of the reason South Africa should celebrate and welcome this development was that 30% was untied and 70% was tied to the IMF regulatory framework. The concern was that the key challenges would include the fact that many of the projects in countries may have failed over the years because it was said that they did not meet technical standards set by the IMF and World Banking requirements. He also asked how South Africa would now relate to the IMF and the World Bank.

Mr Fuzile said that countries should set up alternatives, but the alternatives must be viable and put positive pressure on existing institutions. These institutions, and future ones, could make a meaningful contribution if they distinguished themselves by showing more sensitivity to the developmental challenges faced by the developing countries. As poor as countries may be, they still deserved fair conditions when they were given funding by these institutions.

The Chairperson said the Memorandum referred to the NDB's Annual Report, and he asked if that Annual Report was to go to each country’s Parliament, and what was the process for countries to deal with that report.

Mr Fuzile explained how these institutions worked. For instance, in the African Development Bank, the Minister of Finance was the Governor and the Director General of National Treasury was his alternate. There would be annual meetings, like a shareholders' meeting, where the Annual Report would be published. The countries had the option to give a summary of that report in their countries (similar to an Annual Report briefing). There was a summit in July 2015 in Russia. The idea was to process the outstanding documents as quickly as possible.

Adoption of Minutes

Ms T Motara (ANC, Gauteng)  asked the Committee to deal with the minutes in the following Committee meeting, as there were six sets of minutes from 19 November 2014 to date. Considering that the minutes were received by the Committee shortly before the meeting started, she felt that Members could not do proper justice to them.

Mr Gaehler supported the proposal.

Ms Van Lingen pointed out that the Committee was not supposed to start a meeting until it had dealt with the minutes of the previous meeting.

Mr Zolani Reno, Committee Secretary, explained that the Committee had not yet had a meeting to deal with this Committee's business alone, since other Committee meetings in the current year had been joint meetings with other committees.

Members agreed that the adoption of the outstanding minutes be deferred to the next Committee meeting.

The meeting was adjourned.